This is
an employment discrimination case. Plaintiff Stephanie Warren
(Warren) contends that Fannie Mae terminated her from her
position as a sales representative with the company based on
her race. See, e.g., Doc. 28, Pl.'s Second Am.
Compl. ¶¶ 4.02, 4.07, 4.12 [hereinafter Pl.'s
SAC]. Fannie Mae fired Warren in February 2013. Id.
¶ 4.07. The reason for Warren's termination lies at
the heart of this suit. Warren maintains that she was fired
because of her race. Id. ¶ 6.03. Fannie Mae
counters that it was because she violated company policy by
engaging in an improper relationship with an outside real
estate broker. See, e.g., Doc. 54, Def.'s Br.
Supp. Mot. Summ. J. 1, 6 [hereinafter Def.'s Br.].

Fannie
Mae is a publicly traded company created by congressional
charter to support the national housing market by investing
in mortgage loans. 12 U.S.C. § 1723a; Doc. 28, Pl.'s
SAC ¶ 4.01. Due to its mortgage investments, Fannie Mae
owns real estate throughout the United States. Doc. 54,
Def.'s Br. 3. More specifically, when a property secured
by one of Fannie Mae's mortgage interests is foreclosed
upon, Fannie Mae takes ownership of the property-a
“real estate owned” (REO) property-to manage and
eventually sell it. Id.

Fannie
Mae asserts and its summary judgment evidence indicates that
in March 2012, Finch emailed Warren to say that Djiya's
application to Fannie Mae had been submitted, and attached to
the email copies of documents that Warren was supposed to
submit to Fannie Mae about Djiya's application.
Id. at 12 (citing Doc. 55, Def.'s App. 92-93,
Ex. 5, Warren Depo.). Finch, Fannie Mae says, had filled in
the documents to look as though Warren had completed them
when in fact he had. Id. The documents included an
email address and phone number for Djiya that were different
from her usual email and phone number. Id. (citing
Doc. 55, Def.'s App. 119, Ex. 5, Warren Depo.). Finch
could access the new email address and potentially the phone
line, too. Doc. 54, Def.'s Br. 12 (citing Doc. 55,
Def.'s App. 131-33, Ex. 5, Warren Depo.). Warren knew
that communications intended for Djiya also went to Finch.
Id. Fannie Mae maintains that none of its other
employees did. Id. Finch closed his email to Warren
by saying: “Can you delete my name from the email
forwarding it on and they can use the email in the form as it
goes to me as well as the phone call.” Id.
(quoting Doc. 55, Def.'s App. 186, Ex. 6, Warren Depo.
Ex. 1.).

Fannie
Mae's summary judgment indicates-and Warren does not
appear to contest-that Warren and Finch exchanged a few more
emails about Djiya's application as it wound through
Fannie Mae's screening process. See Id. at 12-13
(citing Doc. 55, Def.'s App. 94, 97-98, 189, 191-92).
Warren's deposition testimony further indicates that
while she did not forward the documents pre-filled by Finch,
neither did she inform her manager at that time about
Finch's involvement with Djiya's application.
Id. at 13 (citing Doc. 155, Def.'s App. 99, Ex.
5, Warren Depo.). Fannie Mae eventually completed its
screening process and on-boarded Djiya as a REO Broker, at
which point she started working with Warren on the sale and
disposition of REO properties. See id.; Doc. 28,
Pl.'s SAC ¶ 4.06. This case turns on the working
relationship between Warren, Djiya, and Finch-and more
specifically, Fannie Mae's investigation into whether
that relationship violated its internal personnel policies.

Fannie
Mae maintains that it employs both practical and formal
safeguards to avoid potential conflicts of interest between
sales reps and REO Brokers. Doc. 54, Def.'s Br.
3-4. In that regard, Fannie Mae often reassigns its
territories among sales reps and uses multiple REO Brokers
within a given sales rep's territory. Id. But as
a more formal measure, Fannie Mae has a Code of Conduct and
personnel policy that govern, among other things, sales
reps' relationships and interactions with REO Brokers.
Id.[2]

Fannie
Mae states that its Code of Conduct and personnel policy aim
to prevent the existence or appearance of impropriety or
conflict between Fannie Mae and its REO Brokers. Doc. 54,
Def.'s Br. 4; see also Doc. 55, Def.'s App.
278, Ex. 21, Conflict of Interest Policy. Along those lines,
Fannie Mae's Code of Conduct articulates a non-exhaustive
list of “Code Breakers, ” that is, examples of
conduct that would violate the code. Doc. 54, Def.'s Br.
4 (citing Doc. 55, Def.'s App. 256, Ex. 19, Arrington
Decl.). Listed among those exemplary Code Breakers is:
“Giving one Fannie Mae vendor an inappropriate
advantage over other vendors.” Id. Read in
context, Fannie Mae says, that means that its employees may
not engage in conduct that either: (1) gives a vendor an
inappropriate advantage; or (2) appears to give a vendor an
inappropriate advantage. See id.; see also
Doc. 65, Pl.'s Resp. 10-11, 22, 25. Fannie Mae claims
that it requires that all of its employees, including Warren
when she worked there, review the Code of Conduct annually.
Doc. 54, Def.'s Br. 4 (citing Doc. 55, Def.'s App.
162:4-13, Ex. 5, Warren Depo.).

In any
event, Fannie Mae says that once an investigation is
complete, the lead investigator identifies “directed
action” to be taken as a result of the
investigation's findings. Doc. 54, Def.'s Br. 5.
Fannie Mae's Chief Compliance Officer then purportedly
reviews the proposed directed action before it is
implemented. Id. at 5-6. During that process, the
proposed directed actions are often discussed with Fannie
Mae's management team. See Id. Fannie Mae
maintains-but Warren disagrees-that those discussions are
just to ensure that all pertinent information is on the
table; management supposedly has no input into the selection
or enactment of directed actions. Id.; see
also Doc. 65, Pl.'s Resp. 7, 12, 23.

Fannie
Mae claims that its mortgage fraud group later expanded the
investigation into Finch's conduct, as well as that of
another unrelated broker named Jonathan Spinetto. Doc. 54,
Def.'s Br. 7. Fannie Mae maintains that it concluded
through the investigation that Finch and Spinetto improperly:
(1) accessed the AMN without Fannie Mae's authorization
or approval using other brokers' login credentials and
passwords; (2) required the brokers that they worked with to
split commissions as payment; and (3) masked their
participation by creating false emails and phone numbers to
lead Fannie Mae to believe that it was contacting other
brokers when it was in fact corresponding with Finch and
Spinetto. Id. Fannie Mae also became concerned that
sales reps other than Neugent were implicated by Finch and
Spinetto's behavior. Id. at 8.

For
that reason, Fannie Mae states, its investigations unit
looked into which sales reps had worked with either Finch or
Spinetto. Id. That inquiry initially identified 12
employees but two more names later came to light through
ensuing investigations. Id.; Doc. 65, Pl.'s
Resp. 22-24. Warren was among the first 12-Finch, cooperating
with Fannie Mae's request, specifically named Warren as a
sales rep who he had worked with in a list forwarded to the
investigations unit. Doc. 54, Def.'s Br. 8
(citing Doc. 55, Def.'s App. 303-05, Ex. 23, Finch
Depo.). Fannie Mae asserts that an investigation into
Warren's behavior then began as a result of Finch's
report. Id. at 9.

Fannie
Mae claims that its investigation uncovered a number of
questionable or improper activities by Warren, including: (1)
acquiescing to Finch's unauthorized access of Fannie
Mae's AMN using Djiya's login credentials; (2)
letting Finch conduct training for Djiya that Warren should
have conducted herself; (3) permitting Finch to manage or at
least be involved in managing REO properties assigned to
Djiya; and, most importantly, (4) not telling anyone about
it. Doc. 54, Def.'s Br. 13-15. In essence, Fannie Mae
says, when Warren worked with Djiya, she was actually working
with Finch. Id. And despite, Fannie Mae maintains,
signs that interplay might be improper-for instance,
Warren's annual review of Fannie Mae's Code of
Conduct or requests that names be redacted from emails-Warren
never reported it to her supervisor or other
superior.[3]Id.

Warren
casts these facts in a different light. Djiya was the only
REO Broker available in the area, so she worked with her.
Doc. 28, Pl.'s SAC ¶ 4.09. What's more, her
understanding of Fannie Mae's rules and practices allowed
for relationships like that between Finch and Djiya.
Id. ¶ 4.10. And Warren never received payments,
kickbacks, or any other benefits from Finch or Djiya.
Id. ¶ 4.11. Therefore, Warren says, nothing was
amiss and there was no conflict of interest. Id.

Nevertheless,
Fannie Mae says that its investigations unit concluded that
Warren's actions created an appearance of impropriety.
Doc. 54, Def.'s Br. 15. Warren's deposition
testimony, proffered by Fannie Mae, indicates that in August
2012 another REO Broker in Pennsylvania contacted Warren and
asked whether Djiya was working with someone in Virginia.
Id. (citing Doc. 55, Def.'s App. 122-23, Ex. 5,
Warren Depo.). Fannie Mae says that Warren reported that call
to Djiya and Finch, but not to her supervisor or any other
superior. Id. (citing Doc. 55, Def.'s App.
125-26, Ex. 5, Warren Depo.). Fannie Mae claims that based on
all of those occurrences and Warren's failure to report
them to management, the lead investigator on Warren's
case, Leslie Arrington, determined that termination was the
appropriate direct action to take. Id. at 15-18.

In
February 2013, Fannie Mae's Director of Sales informed
Warren that she was being terminated for allegedly violating
Fannie Mae's Code of Conduct in connection with her work
on REO properties in Pennsylvania. Doc. 28, Pl.'s SAC
¶ 4.07. A few days later, Warren received a letter from
Meghan Chadsey, an internal investigator, informing her that
she was fired for failing to maintain an arm's length
relationship with Finch. Id. ¶ 4.08. Warren
asserts that Fannie Mae's reasons for firing her are
false and pretext for illegal discrimination. Id.
¶ 4.09.

On that
basis, Warren filed suit in state court against Fannie Mae
and Jerome Devadoss, Fannie Mae's Director of Real Estate
Asset Management.See Doc. 1,
Notice of Removal, Ex. A-2, Pl.'s Orig. Pet. Warren
amended her state suit, dropping Devadoss and adding Ray
Donovan, an employee in Fannie Mae's auction sales
department. Id., Ex. 6 Pl.'s Am. Pet. Fannie
Mae, in turn, removed the case to this Court. See
Id. Warren moved to remand the case to state court, but
the Court denied her motion and dismissed Warren's claims
against Donovan after finding that he had been improperly
joined. See Doc. 23, Order.

The
Court has already dismissed Warren's defamation claim.
See Doc. 36, Elec. Order. The Court has also
dismissed Warren's claims against Arrington under Federal
Rule of Civil Procedure 4(m) for failure to timely serve
Arrington with process. See Doc. 51, Order. So the
only claims remaining are those against Fannie Mae for race
discrimination under Title VII, Section 1981, and the TCHRA.
Fannie Mae's Motion for Summary Judgment (Doc. 53) seeks
to dismiss all three. Warren has responded to Fannie
Mae's Motion, and Fannie Mae has replied. See
Doc. 65, Pl.'s Resp.; Doc. 69, Def.'s Reply to
Pl.'s Resp. [hereinafter Def.'s Reply]. Thus, Fannie
Mae's Motion is ripe for the Court's review.

II.

LEGAL
STANDARDS

A.
Summary Judgment

Summary
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute “is ‘genuine'
if the evidence is sufficient for a reasonable jury to return
a verdict for the non-moving party.” Burrell v. Dr.
Pepper/Seven Up Bottling Grp., 482 F.3d 408, 411 (5th
Cir. 2007). And a fact “is ‘material' if its
resolution could affect the outcome of the action.”
Id.

The
summary judgment movant bears the burden of proving that no
genuine issue of material fact exists. Latimer v.
Smithkline & French Labs., 919 F.2d 301, 303 (5th
Cir. 1990). Usually, this requires the movant to identify
“those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). But if the non-movant ultimately bears the
burden of proof at trial, the movant may satisfy its burden
just by pointing to the absence of evidence supporting the
non-movant's case. Id. at 322-23.

To be
sure, the court views evidence in the light most favorable to
the non-movant when determining whether a genuine issue
exists. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir.
2000). Yet it need not “sift through the record in
search of evidence to support a party's opposition to
summary judgment.” Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16
& n.7 (5th Cir. 1992)). Simply put, the non-movant must
“identify specific evidence in the record” and
“articulate the precise manner in which that evidence
supports [its] claim.” Id. If it cannot, then
the court must grant summary judgment. Little, 37
F.3d at 1076.

B.
The McDonnell Douglas Burden Shifting Framework

As
referenced, Warren has asserted race discrimination claims
under Title VII, Section 1981, and the TCHRA. The Court
employs the McDonnell Douglas burden shifting
framework to analyze all of those claims.

First,
the plaintiff must “establish a prima facie case of
discrimination.” Id. “‘Although
the precise elements of this showing will vary depending on
the circumstances, the plaintiff's burden at this stage
of the case is not onerous.'” Reed, 701
F.3d at 439 (quoting Mission Consol. Ind. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 633 (Tex. 2012)). Second, if the
plaintiff shows a prima facie case, then “the
‘burden shifts to the employer to show a legitimate,
nonretaliatory reason for the adverse employment
action.'” Id. (quoting Black v. Pan
Am. Labs., L.L.C., 646 F.3d 254, 259 (5th Cir. 2011)).
“This is a burden of production, not persuasion, on the
employer's part, and it ‘can involve no credibility
assessment.'” Bender, 2017 WL 1078509, at
*6 (quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 509 (1993)). Third, “[i]f the employer meets
its burden, then the burden shifts back to the plaintiff to
make an ultimate showing of intentional
discrimination.” Reed, 701 F.3d at 339.

To
prevail under the mixed-motives alternative, by contrast, the
plaintiff “must offer sufficient evidence to create a
genuine issue of material fact ‘that [the
employer's] reason, while true, is only one of the
reasons for [its] conduct, and another motivating factor is
[the plaintiff's] protected characteristic.'”
Id. Simply put, under the mixed motives theory
“the plaintiff can survive summary judgment by
producing evidence that creates a jury issue as to the
employer's discriminatory animus or the falsity of the
employer's nondiscriminatory explanation.”
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
897 (5th Cir. 2002).

Fannie
Mae argues that Jefferson's Declaration should be
excluded because it is irrelevant, prejudicial, hearsay, not
based on personal knowledge, and improper opinion testimony.
Id. at 1-3. Warren, by contrast, argues that
Jefferson's testimony is intimately relevant in that it
speaks to Fannie Mae's investigator's bad faith. Doc.
72, Pl.'s Obj. Resp. 2. Further, Warren continues,
Jefferson's Declaration is not hearsay because it is
based on party admissions by Fannie Mae's employees, and
is not improper opinion evidence because it is based on her
own experience. See Id. at 3-4.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
Court agrees with Fannie Mae. As an initial matter, Warren
purportedly offers Jefferson&#39;s declaration to attack
Chadsey and Arrington&#39;s credibility. It has no other
evidentiary value. Yet credibility determinations are not
allowed at the summary judgment stage. See Baylor Cty.
Hos. Dist. v. Burwell, 163 F.Supp.3d 372, 377 (N.D. Tex.
2016) (&ldquo;The Court cannot make a credibility
determination in light of conflicting evidence or competing
inferences.&rdquo;). Even if the Court were to overlook that
shortcoming, Jefferson&#39;s Declaration is wholly unrelated
to facts at hand. She was employed by Fannie Mae at the same
time as Warren but the similarities end there-the two held
different jobs, were fired for purportedly different reasons,
and asserted different claims. See Doc. 66,
Pl.'s App. 528-29, Ex. 10, Jefferson Decl. So her
...

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